Memorandum submitted by English Nature
EXECUTIVE SUMMARY
1. English Nature considers the following
issues crucial to the successful implementation of the Directive
in England (including the achievement of nature conservation benefits
set out in Article 1) and we wish to draw them, their implications
and some possible solutions to the Committee's attention in the
remainder of our submission:
1.1 "water bodies" should be defined
so as to include small lakes;
1.2 a programme of care for ponds should
be implemented through River Basin Management Plans;
1.3 the remit for achieving "good ecological
status" should be extended from one to three nautical miles
offshore;
1.4 the Water Framework Directive does not
cover all aspects of water management, in particular a separate
programme of action is needed to restore floodplain wetlands as
part of sustainable catchment management;
1.5 "good ecological status" may
not equate to "favourable condition" of SSSIs. In view
of the uncertainty over the position of SSSIs and their targets
in Registers of Protected Areas, every River Basin Management
Plan should contain a Nature Conservation Sub-plan as provided
for in Article 13.5;
1.6 RBMPs should integrate all other plans
and policies affecting water management in the river basins and
be straightforward, so as to encourage public participation and
scrutiny;
1.7 diffuse pollution controls should be
made available before 2009 to protect SACs (European Special Areas
of Conservation) and SSSIs;
1.8 English Nature should be given "competent
authority" status in relation to certain aspects of the Directive;
and
1.9 English Nature should be adequately
resourced to play its part in the implementation of the Directive.
ABOUT ENGLISH
NATURE
2. English Nature is the statutory body
that champions the conservation and enhancement of the wildlife
and natural features of England. We do this by:
advising—Government, other agencies, regulatory
bodies, local authorities, interest groups, business, communities
and individuals;
regulating—the management of special nature
conservation sites in England;
enabling—helping others to manage land
for nature conservation, through grants, projects and information;
and
enthusing—advocating nature conservation
for all and biodiversity as a key test of sustainable development.
3. In fulfilling our statutory duties, we:
— establish and manage National Nature
Reserves;
— notify and safeguard Sites of Special
Scientific Interest (SSSIs);
— advocate to government departments
and others effective policies for nature conservation;
— disseminate guidance and advice about
nature conservation; and
— promote research relevant to nature
conservation.
4. Through the Joint Nature Conservation
Committee, English Nature works with sister organisations in Scotland,
Wales and Northern Ireland to advise Government on UK and international
nature conservation issues.
ENGLISH NATURE'S
INVOLVEMENT WITH
THE WATER
FRAMEWORK DIRECTIVE
5. The emphasis in the Directive on achieving
"good ecological status" for surface waters gives English
Nature, as the Government's ecological adviser, a particular interest
in its implementation.
6. English Nature is represented on the
two principal groups advising on implementation of the Directive
in the UK: the DEFRA Implementation Steering Group and the more
recently established UK Technical Advisory Group. The latter has
"task teams" on which we are also represented—dealing
with technical aspects specifically affecting rivers, lakes and
the marine environment.
7. English Nature co-ordinates its involvement
in the Directive with the other conservation agencies—Countryside
Council for Wales, Scottish Natural Heritage, Environment and
Heritage Service (NI) and the Joint Nature Conservation Committee—through
an Inter-agency Freshwater Group and an Inter-agency Marine Group.
We have organised training for our staff on the basics of the
Directive: a one-day workshop in April was attended by 90 people.
8. We consider that the Directive can potentially
bring significant benefits for biodiversity and integrated catchment
planning. We recognise that the Directive was considerably amended
before adoption in December 2000. This has led to uncertainties
over the interpretation of parts of the Directive, including the
fundamental definition of "what is a water body?". The
informal Guidance being prepared at Community level under the
Common Implementation Strategy—and due to be adopted in
November 2002—may help to throw some light on these controversial
areas. In view of the impact of these areas on biodiversity benefits,
English Nature has secured its own legal advice in the run-up
to implementation.
DIFFERENCES FROM
THE CURRENT
REGIME
9. Many elements of the Directive are already
part of the way we manage the water environment in England: a
licensing regime for abstraction; water charges to the consumer;
and a multifunctional river-basin authority (the Environment Agency)
organised on a catchment basis. The new aspects which the Water
Framework Directive will introduce include:
9.1 controls over diffuse pollution;
9.2 a statutory basis for catchment planning;
9.3 judgment of water quality which includes
nutrients (nitrate and phosphate) and a range of biological elements
(not just macro-invertebrates);
9.4 consideration of the condition of all
headwater streams; and
9.5 appraisal of pressures and impacts on
water bodies and a requirement to introduce specific measures
to prevent their deterioration and achieve "good ecological
status".
WATER BODIES
COVERED BY
THE DIRECTIVE
10. The Directive (article 2.10) defines
a "body of surface water" as a discrete and significant
element of surface water such as a lake, a reservoir, a stream,
river or canal, part of a stream, river or canal, a transitional
water or a stretch of coastal water. The Environment Agency's
current consultation paper The Water Framework Directive: Guiding
principles on the technical requirements (June 2002) draws attention
to the lower size limits for the characterisation of rivers and
of lakes specified in Annex II to the Directive. For rivers, it
is a catchment size less than 10 square kilometres, and there
a probably very few if any of these in England. For lakes, the
lower limit of 50 hectares would cover only the largest lakes
in England.
11. Nevertheless, the Directive in Article
4.1 requires good status to be achieved by "all bodies of
surface water" falling under the definition in Article 2.1.
The Environment Agency's consultation suggests that it would be
inappropriate to report to the European Commission on the state
of garden ponds, but it invites views on the inclusion of smaller
water bodies based on their significance due to ecological, conservation
or social resource value.
12. We consider that for the UK not to seek
to achieve "good" status for lakes and ponds that are
smaller than 50 hectares would run the risk of contravening the
Directive. Land-locked lakes and ponds are not "controlled
waters" under the Water Resources Act 1991 and, therefore,
do not benefit from all the current pollution control provisions.
Section 104(4) of the 1991 Act enables the Secretary of State
to make such lakes and ponds "controlled waters", and
the appropriate orders may need to be made.
13. It is our view that at least all lakes
larger than say five hectares are significant in the context of
most, if not all, English river basin districts. In addition,
we propose that a "programme of care" is developed for
smaller water bodies of local significance to be administered
by the River Basin Planning Authority and reported on within the
River Basin Management Plans. The alternative—of trying
to identify which smaller water bodies are "significant"
and concentrating only on them—seems to us at least as time
consuming and possibly more contentious with stakeholders.
14. The requirement to achieve "good
ecological" status under the Directive applies only to waters
up to one nautical mile offshore, while "chemical status"
applies to territorial waters. In its consultation earlier this
year, the Scottish Executive confirmed its intention to apply
"good ecological status" up to three nautical miles
offshore, to reflect the current remit of the UK pollution agencies.
We support the adoption of a similar arrangement for England,
if only to avoid confusion in cross-border river basins.
15. After some discussion both at UK and
Community level and despite the apparent intention of Article
1(a), it now seems clear that wetlands which are not streams,
rivers, lakes, reservoirs, canals, transitional or coastal waters
are not "water bodies". They cannot be classified as
such and will not directly benefit from the programmes of measures
designed to achieve "good ecological status" required
by the Directive. Those wetlands directly dependent on ground
waters may be indicators of damage, and could thus benefit from
measures to protect ground waters from pollution and over-abstraction.
16. Overall, this is a setback for conservation,
as it would have been beneficial to secure floodplain wetlands
against further drainage and to assure their water needs (eg flood
waters from nearby rivers). It is important to realise and publicise
the fact that the Water Framework Directive does not cover all
aspects of water management. English Nature will continue to press
for a programme to restore and re-create floodplain wetlands,
in line with targets in the UK Biodiversity Action Plans, eg as
part of a sustainable approach to flood management.
DEFINING "GOOD
ECOLOGICAL STATUS"
AND PREVENTION
OF DETERIORATION
17. Depending on where the boundaries between
"high", "good" and "moderate" ecological
quality are set, a greater or lesser number of water bodies will
benefit from the provisions of the Directive. We should learn
more once examples of "good" water body types are submitted
to the Commission at the end of 2003 for an intercalibration exercise.
18. English Nature is concerned that the
favourable condition of SSSI water bodies, whose targets we set
to sustain their special wildlife communities, may not be met
by "good ecological status" as eventually defined under
the Directive. However, we recognise that it would be very costly
to bring all water bodies to the same standards as SSSIs. We do
not believe that more than a handful of SSSI water bodies could
be currently considered of "high" ecological status
(ie conditions undisturbed or hardly disturbed by human influence).
19. Unless the SSSI targets are maintained
and pursued by all those public bodies who have duties under the
Countryside and Rights of Way Act 2000 to further their protection
and enhancement, we could put our remaining SSSI water bodies
and their wildlife at risk. English Nature has, therefore, made
a proposal to DEFRA that every River Basin Management Plan should
have a nature-conservation sub-plan, as allowed by Article 13.5
of the Directive, which would contain all current targets and
commitments for SSSIs and biodiversity action plans. Our initial
proposal has met with support at official level, and we are now
drafting a more detailed submission for consideration by Ministers.
20. River Basin Management Plans will benefit
biodiversity by taking a whole catchment/ecosystem approach and
recognising the hydrological connections between water bodies
and wetlands, rather than viewing wildlife habitats as isolated
sites.
21. The Directive requires measures to be
taken to prevent deterioration of the status of all bodies of
surface water. We assume that this means that a water body should
not be allowed to drop from "high" or "good"
to a lower status category. However, it is not clear whether a
water body whose chemical status is "high" but whose
biological elements are assessed as "good", could have
its chemical status drop to "good" without any preventive
action being required. We consider that such inaction would be
against the spirit of the Directive. Similarly, if "good"
ecological status turns out to be a very broad band, we believe
that a water body should not be allowed to drop from the top to
the bottom of the band without preventive action being taken.
RIVER BASIN
MANAGEMENT PLANS
22. Article 13 requires River Basin Management
Plans to be produced by 2009. From Annex VII it can be seen that
the contents are potentially very complicated. We believe that
it is essential that the targets, measures and monitoring results
are presented in a simple and straightforward way that can be
understood—and, where necessary, challenged—by the
public. In this way, the system of River Basin Management Planning,
with its emphasis on public information and participation (Article
14), provides a way of improving on current UK water quality assessment
and monitoring, including the setting of discharge consent conditions,
which is over-complex and lacks interpretation. The use of diagrams
and illustrations in the technical consultation prepared by the
Scottish Environment Protection Agency and the Environment Agency
(June 2002) is a good start.
23. River Basin Management Plans also provide
an opportunity to integrate catchment planning. The Environment
Agency has identified a number of plans which affect water management,
such as Catchment Flood Management Plans (a recent DEFRA initiative),
Water Level Management Plans (currently applying to SSSIs), LEAPs,
Catchment Abstraction Management Strategies, and Fisheries Action
Plans. Many of these go beyond the strict requirements of the
Water Framework Directive (eg flood management, and stocking and
exploitation of fish), but reflect UK legal requirements or current
practice. We see a danger of "plan proliferation" and
recommend that these plans are integrated in RBMPs, albeit with
clear labelling of what is a Directive requirement and what is
a domestic requirement or commitment.
24. There has been considerable debate about
the content of Registers of Protected Areas and whether they include
areas designated under national or local legislation, such as
SSSIs. We believe that the Directive probably does not intend
these areas to be Protected Areas. Article 6.1 clearly refers
to designation under specific Community legislation, and Article
8.1 refers to programmes of monitoring established by the Community
legislation under which the protected areas have been designated.
Annex IV is less clear and refers to maps of nationally and locally
designated areas. We take the references to the Habitats Directive
and other current Directives not being exclusive to mean that
there may be more Community legislation establishing different
kinds of protected area in the future, rather than including national
and local areas.
25. If national and local areas were included
on the Registers, without real clarity as to their status, this
could cause confusion as to whether they were Protected Areas
and whether their objectives would supersede those of the Directive.
In view of these uncertainties and the bureaucracy of listing
and reporting to the European Commission on national and local
nature conservation sites without any tangible benefits accruing,
we have proposed that each RBMP should include a nature conservation
sub-plan (see para 19 above). These sub-plans would include lists
of relevant Special Areas of Conservation (SAC) and Special Protection
Areas for birds (SPA) and their conservation objectives established
by English Nature; lists of SSSIs and the relevant PSA target
(currently that 95% should be in favourable condition by 2010);
and targets for priority habitats and species relevant to that
river basin in the UK Biodiversity Action Plan and local BAPs.
26. The Co-ordinator of the UK Water Framework
Directive Technical Advisory Group (Peter Pollard, SEPA) has informed
us of some of the likely information requirements from English
Nature in providing information on SACs, SPAs, SSSIs and BAP habitats
in the next two years. This information will be used for intercalibration
of water bodies on the boundaries of good status; the identification
of reference sites; the compilation of the Protected Areas Registers;
and the characterisation of water bodies, impacts and pressures
in individual river basins. There will also be a subsequent role
in providing information for the monitoring programmes for protected
areas.
27. We can build on this information base
to prepare "nature conservation sub-plans" for the River
Basin Management Plans. In these respects, we expect that English
Nature will become a competent authority in the regulations transposing
the Directive. English Nature needs to be properly resourced to
play its part in the implementation of the Directive.
DIFFUSE POLLUTION
CONTROLS AND
INCENTIVES
28. We understand that the transposing regulations
for the Directive in England may contain new powers to regulate
diffuse pollution from agriculture. Whilst we welcome moves to
reduce this hitherto unrestricted form of pollution by regulating
land use, we are concerned that (a) the new controls may not be
implemented until 2012, and (b) they will not be sufficient to
deliver favourable condition of SSSIs, if this is above what is
required under "good ecological status". We understand
the constraints of transposing the Directive by regulations under
Section 2(2) of the European Communities Act 1972, and we would,
therefore, seek from the Environment Agency and the Government
a clear commitment to use the existing provisions for Water Protection
Zones (Section 93 of the Water Resources Act 1991) where the favourable
conservation status of SACs or SPAs or the favourable condition
of SSSIs is shown to be significantly impaired by diffuse pollution.
29. English Nature has developed a strategy
on diffusion pollution from agriculture, in consultation with
the Environment Agency. Reducing diffuse pollution will not only
bring benefits to biodiversity but also to agriculture, through
soil conservation, and to fisheries and flood management, through
minimising silt loads reaching rivers and lakes. We have advised
Ministers on the need to include diffuse pollution elements in
the "broad and shallow" scheme for farmers, as part
of the Food and Farming Strategy proposed by the Curry Commission
in January 2002. We have also recommended a "narrow and deep"
package to be targeted at the most vulnerable catchments. We would
urge the early introduction of these incentive schemes—so
that continuing instances of pollution can be dealt with expeditiously
within the timescales set by the Directive.
English Nature
19 September 2002
| 
